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Insurance Update: 2017 in Review

The insurance litigation sphere is constantly evolving. We recap on what we consider to have been some of the key changes over the last 12 months.

Personal Injuries Commission

The Personal Injuries Commission, chaired by former president of the High Court, Nicholas Kearns, was set up early last year in response to a recommendation by the Insurance Costs Working Group. The Commission produced its first report just before Christmas and made a number of interesting observations and recommendations.

The Commission noted that the Personal Injuries Assessment Board (PIAB) estimates that around 80% of motor related injury claims are for soft tissue type injuries, a proportion which is significantly higher than in other jurisdictions.

The Commission suggested that there should be standardised, “objective” guidelines for diagnosing soft tissue injury, or whiplash as it is commonly known, something which has been used successfully in other jurisdictions, such as Canada. The Commission advocated training and accreditation for medical professionals reporting on soft tissue injuries.

The Commission will now move onto the next phase of its work – benchmarking international compensation awards with those in this jurisdiction and looking at alternative compensation models such as “cash for care”.

The key immediate effect is that before issuing most proceedings, lawyers are required to:

Advise clients to consider mediation

Provide clients with information regarding mediation, and

Make a statutory declaration to this effect

The Act is an opportunity to encourage more businesses to consider using mediation as a tool for resolving commercial disputes. The proposed legislation should result in a practical reduction in both costs and resources in a wide variety of disputes. It will be interesting to see how the Mediation Act works in the context of personal injury claims and whether it will impact to any significant extent on how insurance claims are dealt with.

New Benchmark for Bullying

We acted successfully for the defendant in the case of Una Ruffley v the Board of Management of St Anne’s School. The case made its way through the High Court, Court of Appeal and finally resulted in a seminal decision of the Supreme Court which has set a benchmark for bullying and harassment claims.

The Court engaged in an extremely interesting analysis of the law on bullying and the full judgments of Mr Justice Peter Charleton and Mr Justice Donal O’Donnell are essential reading for those dealing with this area on a regular basis.

In brief, the Court clarified the test in Quigley v Complex Tooling & MouldingLtd [2009] 1 IR 349 and stated that there must be repeated incidents of inappropriate conduct, each of which individually undermines an individual’s right to dignity at work. In order to have that effect the behaviour must be capable of being described as “outrageous, unacceptable and exceeding all bounds tolerated by decent society”.

The decision appears to have set a higher threshold for what conduct constitutes bullying and indeed the Court itself noted that the “test for bullying is of necessity set very high”.

It will be interesting to note how this decision is now applied by the courts.

Conclusion

In 2018, we will potentially see changes in the way in which whiplash is assessed by the medical profession.

Bullying claims will also receive new treatment, viewed through the prism of the Supreme Court judgments. The threshold has been raised and those on both the defence and plaintiff sides need to take heed.

This may also be an area where the Mediation Act will be of some assistance. Given the sensitive and often emotional nature of such claims, mediation could give plaintiffs an arena to tell their story which they do not have in traditional settlement negotiations.

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